Obstetric Violence and Modern American Medical Jurisprudence – PART II – Recent Blog Posting by Eric Frisch
Recent Blog Posting by Eric Frisch. Eric is a partner with Carlock, Copeland & Stair in Atlanta, Georgia. He has practiced for twenty years and focused his practice on the defense of medical professionals for the last fifteen years with a focus on maternal-fetal claims.
Since our previous article at the beginning of this year, interest in the topic of “obstetric violence” and related topics has increased. In January 2016, the doctor who performed a refused episiotomy captured on camera surrendered his license. In June 2016, the American College of Obstetricians and Gynecologists issued Committee Opinion Number 664, Refusal of Medically Recommended Treatment During Pregnancy. Also in June, informed refusal and obstetric violence were the topic of a panel counsel discussion at the American Conference Institute’s 13th Annual Advanced Forum on Obstetric Malpractice Claims. This month, the Atlanta Journal Constitution published an extensive investigation on physician sexual assaults and other abuses. With the maturing of the topic in the media and legal discussions, we take a look at the recent developments.
PRIMER ON OBSTETRIC VIOLENCE
The term “obstetric violence” is primarily used outside of the United States and there is no uniform definition. The concept generally refers to maternal autonomy over the birthing process and the right to be free from unwanted healthcare provider interference in any respect during pregnancy and child birth. The term recognizes the attraction of natural physiologic and unaided childbirth in light of rising assisted and surgical delivery rates and the need for basic human rights for childbearing women. Venezuela’s obstetric violence law enumerates such acts as “the appropriation of a woman’s body and reproductive processes by health personnel, in the form of dehumanizing treatment” and “abusive medicalization and pathologization of natural processes.” This includes physical violence, excessive force on the fetus, lack of informed consent, misinformation about delivery options and methods, and disrespect for non-medical deliveries like the use of a doula or water births. Although these things may sound archaic, the World Health Organization reported that at least nineteen countries fell well short of the mark.
OBSTETRIC VIOLENCE IN THE UNITED STATES
When we reported on this topic earlier this year, the conclusion was that there were few reported legal decisions embracing the term “obstetric violence.” This remains the case. We reported on three cases that made their way into the media: Malatesta v. Brookwood Medical Center (Alabama), Turbin v. Abbassi (California), and Mitchell v. Brooks (Virginia).
The Turbin matter made the most news. By way of refresher, Kimberly Turbin presented to Providence Tarzana Medical Center for delivery and disclosed that she had been the victim of sexual assault. She asked the staff to treat her gently and to ask her permission before touching her. The labor was filmed and Ms. Turbin’s mother was in the room. The video, which is posted on YouTube , shows Ms. Turbin pushing. Dr. Abbassi, the obstetrician, then tells Ms. Turbin he needs to cut an episiotomy and Ms. Turbin questions the recommendation. Ms. Turbin refuses and asks to keep pushing. Dr. Abbassi, the nurses and Ms. Turbin’s mother appear to try to talk her into it over Ms. Turbin’s refusal. Ultimately, Ms. Turbin’s mother instructs Dr. Abbassi to proceed, which he does. Ms. Turbin continues to object. Ms. Turbin alleges Dr. Abbassi did not disclose an emergency and Ms. Turbin did not consent to the episiotomy, which was performed anyway. The most recent update is that Dr. Abbassi surrendered his license .
ACOG’S COMMITTEE OPINION NUMBER 664
In June 2016, ACOG issued a comprehensive Committee Opinion on Refusal of Medically Recommended Treatment During Pregnancy. Although the Opinion does not address the medico-legal issues that could arise with informed refusal, the Opinion represents a clear expression of the primacy of the mother’s autonomy at all points during pregnancy and childbirth. We are not aware of ACOG previously expressing this opinion, which appears to be a quantum leap away from the traditional emphasis on the fetus and newborn, seemingly to the exclusion of the mother, in previous bulletins and opinion statements.
The Committee begins by recognizing the “ethical dilemma” that arises when a pregnant woman refuses recommended treatment: a conflict between the mother’s autonomy and the provider’s desire to optimize the health of the fetus. The Committee further frames the question in light of the provider’s “professional obligation” to respect informed refusal and the provider’s “personal values.” Finally, the Committee introduces its opinion against “forced compliance” against the backdrop of “profoundly important issues about patient rights, respect for autonomy, violations of bodily integrity, power differentials, and gender equality.”
The Committee’s Recommendations include:
• Recognition of the mother’s right to refuse treatment;
• A clear statement against coercion as ethically impermissible and medically inadvisable “because of the realities of prognostic uncertainty and the limitations of medical knowledge”; and
• An open dialogue between patient and provider about values when there is refusal, including a non-confrontational dispute resolution process using a team approach.
If we pause here, it is easy for medico-legal litigators to see the potential impact this Opinion can have on obstetric cases. The most common litigated obstetric malpractice issue is the failure to perform a surgical delivery in a timely manner. The underlying claimant’s theme is the importance of fetal health above all else. However, the Committee addressed the idea that fetuses are “independent patients with treatment options and decisions separate from those of the pregnant woman.” The Committee pointed out that, taken to the extreme, this concept can lead to the impression of the pregnant woman as a “fetal container.” The Committee rejects this, stating that the “most suitable ethical approach . . . is one that recognizes the pregnant woman’s freedom to make decisions.” The idea is that women will typically make decisions in the best interests of the fetus and that focus on maternal health will usually inure to the benefit of the fetus. The Committee concludes by urging practitioners to think of their roles as “having beneficence-based motivations toward the fetus . .. and a beneficence-based obligation to the pregnant woman who is the patient” because all fetal intervention “must be undertaken through the pregnant woman’s body.” In sum, this is a quantum shift away from the primacy of fetal health in favor of maternal health.
For those involved in medico-legal practice, the evolution of this story presents a number of conceptual (not to mention, evidentiary) questions. How does a practitioner balance patient autonomy with fetal safety? If a practitioner puts maternal health and choice over the health of the fetus with a resulting poor fetal outcome, are they legally protected? Will juries embrace the primacy of maternal health when evaluating a poor fetal outcome?
Taking it a step further, what will juries do when faced with informed refusal? Think of the case in which mother refuses medically-recommended treatment, father and provider want to intervene, and there is a poor fetal outcome after intervention. Can mother recover? Can the provider ask the jury to apportion damages to the mother for contributing to the delay and will a jury care? What about the converse: provider proceeds without intervening and there is a poor fetal outcome. Will a jury apportion damages to the mother in such a case? Does father put mother on the verdict form in states with apportionment? We can only anticipate that the law, as a lagging indicator, will eventually catch up with this quickly changing aspect of medicine.
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